NEW JERSEY LAWYER

DAILY BRIEFING      05/16/2005


News Briefs

JUDGE COHEN REAPPOINTMENT HITS SNAG
The reappointment of Judge Diane B. Cohen of Cumberland County apparently is in trouble. The Senate Judiciary Committee was presented a list of 10 judges — Cohen included — nominated for their second six-year term, usually a routine matter. But after a closed-door session, it was announced Cohen’s nomination would be tabled, at least until the panel’s next meeting May 23. Her term is up June 11, and the next full Senate session is scheduled for June 20. The 66-year-old judge needs four more years on the bench to qualify for a 75 percent pension. Cohen is presiding family judge of the Cumberland-Gloucester-Salem vicinage. She is a former president of the Camden County Bar Association and once chaired the New Jersey State Bar Association committee that reviews judicial nominees. The other nine judges breezed through the committee and were confirmed a few hours later in the Senate voting session. 5-13-05

N.J. HIGH COURT TO REVIEW PROBATION OFFICERS, PRO BONO CASES
The New Jersey Supreme Court has agreed to review two key constitutional cases, including one addressing the court’s own powers. In In re Matter of P.L. 2001, Chapter 362, the Appellate Division said a law allowing probation officers to carry firearms unconstitutionally trampled on the power of the judiciary to control its own employees. In effect, the Supreme Court, which is the final authority for the judicial branch, will be passing judgment on how the doctrine of separation of powers applies to itself. The other case, Pasqua v. Council, involves whether indigent parents who renege on child-support obligations have a constitutional right to pro bono representation. A Superior Court judge ruled such parents do have the right to have lawyers appointed for them. The Appellate Division reversed, saying the lower court ignored precedent. A stay of the Appellate Division ruling remains in effect. 5-13-05

SEVEN NEW STATE JUDGES TO BE SWORN
Seven new Superior Court judges will be sworn in soon. Acting on the recommendations of the Senate Judiciary Committee, the Senate approved them unanimously. Essex County: Republican Ned M. Rosenberg of Fairfield’s Simon, Sarver & Rosenberg, and Democrats Verna G. Leath and Torkwase Y. Sekou, both from the state Office of the Public Defender. Morris County: Republicans Robert J. Brennan, a principal at Porzio, Bromberg & Newman in Morristown, and Thomas L. Weisenbeck of Bressler Amery & Ross in Florham Park, a former assistant U.S. attorney; and Democrat Robert E. McCarthy, a professor at Seton Hall University School of Law and former general counsel at Time Inc. in New York. Gloucester County: Democrat Colleen A. Maier, a Woodbury solo. Also confirmed for second six-year terms were Judges Sallyanne Floria, Bryan D. Garruto, Glenn A. Grant, Harriet Farber Klein, Thomas N. Lyons, Amy O’Connor, Edward J. Ryan, Peter V. Ryan and Marie P. Simonelli. 5-13-05

LARGE FIRMS SPREAD WINGS TO PROTECT HOME TURF
After years of watching out-of-state firms pick up new partners and business in New Jersey, large home-grown firms now are branching into other states. The opening of a Philadelphia office by Newark’s Gibbons, Del Deo, Griffinger & Vecchione is the latest of several such moves by large Jersey firms. “We need to shed the image that we are New Jersey-only and show that we are regional firms,” said Gibbons chairman, David J. Sheehan. Allan D. Koltin, president of Practice Development Institute, a Chicago-based practice management consultancy, said large state-based firms nationwide are expanding to fend off competition from national powerhouses. For a full story, see the May 16 New Jersey Lawyer. 5-13-05

COURT REPRIMANDS FORMER ASSEMBLY LEADER
Toms River attorney John Paul Doyle has received an official reprimand from the New Jersey Supreme Court, which cited a conflict of interest in his representation of a client who had business before the planning board for which he was counsel. Doyle did some work for ARC Properties, a shopping center developer, in a matter before the Lakewood Township Committee. The same developer had a site plan application before the Brick Township Planning Board, for which Doyle was attorney. Doyle made no secret of the relationship, recusing himself from all ARC matters before the board. But Doyle’s firm — Carluccio, Leone, Dimon, Doyle & Sacks — did some more investigating and realized it should not have represented ARC while Doyle served as board attorney. The Supreme Court’s reprimand followed a recommendation from the Disciplinary Review Board. In 1996, Doyle’s license was suspended six months for his role in a real estate deal. He served in the Assembly from 1974 to 1992, four of those years as Democratic majority leader. 5-13-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, MAY 13, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, MAY 13, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON MONDAY, MAY 16, 2005.


APPROVED FOR PUBLICATION
LAND USE
STRUCTURE BUILDING CORP. v. ABELLA
Appellate Division, A-4483-03T2, approved for publication May 13, 2005. (7 pages). Facts-on-Call Order No. 92457

The rights of homeowners to participate in hearings and to oppose zoning applications that affect their property — such as by commencing legal actions to oppose a planning board’s approval of a subdivision — are protected by the Noerr-Pennington doctrine, which provides immunity to persons who petition the government for redress.

DRUNK DRIVING
STATE v. CHAMBERS
Appellate Division, A-6987-03T1, approved for publication May 13, 2005. (18 pages). Facts-on-Call Order No. 92458

The 2004 amendment to N.J.S.A. 39:4-50(a)(1) — which reduced the period of license suspension for some first-time offenses of driving while under the influence of alcohol from a six-month minimum to a three-month minimum — does not apply retroactively to a Municipal Court conviction that preceded the amendment’s effective date.

NOT APPROVED FOR PUBLICATION
ATTORNEYS
GOMEZ v. BORGEN
Appellate Division, A-3571-03T2, May 13, 2005, not approved for publication. (16 pages). Facts-on-Call Order No. 17952

Summary judgment for the defendant attorney in a legal malpractice action reversed and remanded for trial; the defendant was a newly admitted attorney who met with the plaintiff accident victim when a partner at the law firm that employed the defendant was unavailable; the defendant executed a retainer agreement with the plaintiff and later wrote letters to him; no complaint was filed on the plaintiff’s behalf before the two-year statute of limitations expired; the plaintiff sued the defendant, but not the law firm, for malpractice; after drawing all favorable inferences in the plaintiff’s favor, there was a factual question about whether the defendant’s activities in connection with the plaintiff’s file were sufficient to impose on him a duty to ensure that the complaint was timely filed, despite his limited responsibilities at the law firm.

INSURANCE
BONITO v. UTICA MUTUAL INSURANCE GROUP
Appellate Division, A-3844-03T5, May 13, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 17950

Denial of the defendant insurer’s motion for summary judgment in an action for underinsured motorist benefits affirmed; the plaintiff was injured when the vehicle in which he was a passenger was involved in an accident with a phantom vehicle; the plaintiff sought UIM benefits under the defendant’s policy issued to his parents, with whom he was then living; the motion judge properly concluded that the coverage provided to the plaintiff under his motorcycle policy and the coverage provided by the defendant’s policy were not similar and that the defendant’s step-down provision did not apply.

WORKERS’ COMPENSATION
O’BRIEN v. GREAT A & P TEA CO.
Appellate Division, A-2904-03T5, May 13, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 17953

Dismissal of the petitioner produce clerk’s occupational exposure claim for failure to comply with the notice provisions of N.J.S.A. 34:15-33, which was repealed about one month after the dismissal, affirmed; the petitioner claimed that he was injured by lifting, bending, and carrying heavy items between April 1990 and October 1999; contrary to the petitioner’s arguments on appeal, (1) the repeal of §34:15-33 should not be given retroactive effect and (2) the record did not support his assertion that the respondent employer had actual knowledge of his injuries before the claim petition was filed where all of the evidence, except for the petitioner’s testimony, indicated that he had repeatedly attributed his injuries to an accident that was not work-related and where the judge of compensation found that the petitioner’s testimony lacked credibility.

ENVIRONMENTAL LAW
HILMARK, INC. v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION
Appellate Division, A-5218-03T2, May 13, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17951

Final administrative decision of the Administrator of the New Jersey Spill Compensation Fund that denied the petitioner ice and storage business’s claim for damages under the Spill Compensation Fund Act and its request for arbitration affirmed; after its well water had become contaminated, the petitioner received awards on two claims for the destruction of ice, for the cost of connecting the petitioner to a public water source, and for lost ice production and the purchase of ice from other ice plants; in a third claim, the petitioner sought to recover for the cost of cooling the public water source that it currently uses to manufacture ice; the Administrator properly concluded that the third claim was untimely pursuant to the one-year time bar under N.J.S.A. 58:10-23.11k where it was filed more than two years after the first two claims and about two years after the payments were made; although the discovery rule can be used to allow for late claims, the delay in this case was not “objectively reasonable.”

PUBLIC EMPLOYEES
McKENZIE v. COUNTY OF UNION DEPARTMENT OF PUBLIC SAFETY
Appellate Division, A-4820-02T2, May 13, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 17949

Merit System Board’s final agency decision that modified the corrections officer’s penalty from termination to a 120-day suspension and that determined that the administrative law judge improperly dismissed disciplinary charges against the officer affirmed; charges of conduct unbecoming a public employee and violations of various rules and regulations stemmed from a birthday party thrown in the Union County jail for the officer at which female inmates reportedly danced in “revealing” attire, physically contacted him in a sexual way, and performed “a conga line dance and talent show”; contrary to the County’s arguments, the Board’s modification of the penalty “should not be disturbed” because it was based, among other things, on a finding that the officer did not help organize the party; contrary to the officer’s arguments, the ALJ’s dismissal of the charges after refusing to grant a short adjournment to the County to contact a key witness was an abuse of discretion, and the Board’s rejection of the dismissal was not arbitrary, capricious, or unreasonable.

EMPLOYMENT LAW
SCHOENBACH v. DUREX, INC.
Appellate Division, A-2438-03T1, May 12, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 17954

Final judgment for the plaintiff former employee finding that the defendant employer breached their separation contract affirmed; contrary to the defendant’s argument on appeal, the trial judge correctly found that an enforceable contract existed between the parties; the employer offered three options when it decided to terminate the plaintiff after 35 years of employment, and the plaintiff accepted the third option, which contained a six-month severance package; although the defendant promised to reduce the agreement to writing, it never did, but the validity of the agreement did not depend on whether it was memorialized in a writing.


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